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66 Rutgers L. Rev. 921 (2013-2014)
Bail Reform as a Mass Incarceration Reduction Technique

handle is hein.journals/rutlr66 and id is 967 raw text is: BAIL REFORM AS A MASS INCARCERATION REDUCTION TECHNIQUE* Alexarder Shalom** Today's symposium will provide plenty of opportunities for despair. The scope of the mass incarceration crisis in America is, indeed, depressing and signs of hope are few and far-between. But, one area where there is real hope for significant, meaningful change-especially in New Jersey-is pretrial justice reform. So, rather than further discouraging you, allow me to explain why I think bail reform can blunt the impact of the proliferation of mass incarceration. Let us start with a few basic propositions: First, being in jail pretrial is hugely damaging. In addition to the general loss of liberty, a criminal defendant suffers from lost opportunities to maintain employment, an inability to seek appropriate mental and physical healthcare, and separation from family and other support systems.I But, to experienced criminal defense lawyers, prosecutors, and criminal judges, it is almost axiomatic that-in addition to the effect on the defendant's life-the determination of whether a defendant is released or detained pretrial has a profound impact on the defendant's case.2 In an effort to be released, criminal defendants detained pretrial feel more inclined to accept plea bargains than criminal defendants who have been released pretrial.3 This is no surprise: it is a rare defendant- even * This is a modified version of a talk I gave at the March 28, 2014 Rutgers Law Review Symposium When the Law is Guilty: Confronting the Mass Incarceration Crisis in the United States. ** Senior Staff Attorney at the American Civil Liberties Union of New Jersey. 1. See Barker v. Wingo, 407 U.S. 514, 532-33 (1972) (describing the disadvantages to an accused of lengthy pretrial detention). 2. CHRISTOPHER T. LOWENKAMP ET AL., INVESTIGATING THE IMPACT OF PRETRIAL DETENTION ON SENTENCING OUTCOMES, LAURA AND JOHN ARNOLD FOUND. 10 (2013), available at www.arnoldfoundation.org/sites/default/files/pdf/LJAFReport-state- sentencingFNL.pdf (finding that defendants detained pretrial are more likely to be sentenced to prison and receive longer jail and prison sentences and noting that the impact is particularly strong on low-risk defendants). 3. See Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 HARV. L. REV. 2463, 2493 (2004); Josh Bowers, Punishing the Innocent, 156 U. PA. L. REV. 1117, 1132-39 (2008) (describing pressure in low-stakes cases to accept plea offers in spite of actual innocence in order to avoid significant process costs, such as pretrial detention); Joseph Lester, Presumed Innocent, Feared Dangerous: The Eighth Amendment's Right to Bail, 32 N. KY. L. REV. 1, 50 (2005) (A person in jail is more 921